Post-Brexit EU immigration policy in the event of a no-deal

The Home Office has published new plans for EU immigration to the UK. The changes will apply after 31 October 2019 in the event of a no-deal Brexit.

This Insight explains the key points of the Government’s latest no-deal policy on EU immigration to the UK after 31 October. The below information does not apply to EU citizens resident in the UK prior to Brexit.

As this is a fast-moving policy area this Insight should be read as correct at the time of writing.

What is European Temporary Leave to Remain?

European
Temporary Leave to Remain, or ‘ETLR’, was introduced as a policy under the
May Government. ETLR was proposed as a new transitional immigration status for EU
citizens and family members who arrive in the UK after a no-deal exit day. The
Home Office re-announced the policy with some changes on 4 September, under the
name of ‘Euro TLR’.

Euro TLR would be for “law abiding” EU and EFTA arrivals
after exit day. The Home Office explains that Euro TLR will be granted for 36
months and can be applied for until 31 December 2020.

EU citizens and family members who hold Euro TLR can use this status as a “bridge into the new immigration system”. Someone with Euro TLR would still need to meet the criteria for leave under the future system. This means that holding Euro TLR may not be enough to secure the right to stay once the 36 months expire. As the Home Office said, “Euro TLR will therefore only provide a temporary stay in the UK for some EU citizens.” The Home Office is advertising Euro TLR as a “voluntary” status. Those who do not apply for Euro TLR (or status under the future immigration system) will be required to leave the UK by 31 December 2020. This means that, at least until 31 December 2020, EU citizens and their eligible family members can enter and reside in the UK after Brexit without the requirement to apply for any immigration status at all.

How does Euro TLR differ from ETLR?

The below table sets out the key features and key differences of Johnson’s Euro TLR policy as compared to May’s ETLR policy, based on published Government plans.

May’s “ETLR”

Johnson’s “Euro TLR”

36 months leave to remain from the date of application

36 months leave to remain from the date granted

An application fee was proposed.

Applications will be free of charge for EEA nationals. Non-EEA family members will be required to provide biometrics for which there may be a fee.

Will free movement
end on 31 October?

“free movement as it currently stands under EU law will end on 31 October 2019. However, Parliament has provided that much of the free movement framework will remain in place under the EU (Withdrawal) Act 2018 until Parliament passes primary legislation to repeal it.”

Under the Johnson Government’s plan, EU nationals could continue to come to the UK under what is essentially retained free movement law until 31 December 2020. There would be no obligation upon them to regularise their status until 31 December 2020. Colin Yeo, an immigration barrister and blogger, explains:

“In legal
terms, although this is nowhere actually stated in the policy, it looks like
the Immigration (European Economic Area) Regulations 2016 which currently
implement EU free movement law in the UK will be incorporated into UK law and continue
in place whether the UK leaves with a deal or not. Almost exactly the same
rules governing the entry and residence of EU citizens will therefore apply on
1 November 2019 as on 31 October 2019, come what may.”

It remains to be seen when the Government would introduce the primary legislation.

Further announcements

Along with the introduction of Euro TLR, the Home Office announced plans to “apply tougher criminality thresholds” on EU citizens, remove the dedicated EU customs channel at the UK border, ”remove the rights for post-exit arrivals to acquire permanent residence under retained EU law, and the rights for UK nationals who move to the EU after exit to return with their family members without meeting UK family immigration rules”, and introduce blue UK passports.

These changes are slated to happen before Parliament passes the primary legislation required to repeal the UK’s free movement law framework. The current deportation threshold for EEA nationals is set out in regulations which would become retained EU law under the European Union Withdrawal Act 2018.

The Government also reiterated prior commitments to protecting the Common Travel Area arrangements. This means Irish citizens will continue to have the right to enter, live and work in the UK without requiring immigration permission. The Government stated:

“The government will appropriately reflect this position in legislation ahead of the introduction of the new points-based immigration system”.